Opinion
A121902 No. 153468 A127829
01-31-2011
THE PEOPLE, Plaintiff and Respondent, v. MITCHELL ALFRED SAGERS, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified byrule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Defendant Mitchell Alfred Sagers was convicted by a jury of murdering his wife. He contends he was denied his state and federal constitutional rights to a speedy trial because he was hospitalized under a conservatorship for seven years before he was found mentally competent to stand trial. He also argues that the standard instruction on reasonable doubt, CALCRIM No. 220, is erroneous because it fails to explicitly state the jury must find each element of an offense proven beyond a reasonable doubt. Neither argument is meritorious, and we affirm the conviction.
BACKGROUND
Defendant was charged by complaint with Carolyn Sagerss murder in September 1993. In February 1994 he was found incompetent to stand trial and committed pursuant to Penal Code section 1370, subdivision (a)(1), to Napa State Hospital, where he remained for the next two years. In March 1996 defendant was found competent, and in April 1996 the People filed an information charging him with murder.
In December 1996 his counsel expressed a doubt as to defendants competency, and the trial court again suspended the criminal proceedings. The competency issue was submitted on a medical report, and in April 1997 the court again found defendants competence had been restored.
In August 1997 defense counsel again raised a doubt as to his clients competence. Defendants most recent diagnoses were polysubstance dependence, antisocial personality disorder and malingering, and an evaluation stated that all but two of the clinicians who had examined or treated him since 1993 felt he was not psychotic. In January 1998 the court again found defendant competent to stand trial.
Less than a month later, his counsel renewed concerns about defendants competence and the criminal proceedings were once again suspended. After delays caused by defendants refusal to cooperate in his evaluation, in July 1998 psychologist John Shields assessed defendant and reported to the court that he was incompetent. The trial court then appointed Douglas Korpi, Ph.D., the director of the Golden Gate Conditional Release Program, to provide a placement report. Dr. Korpi reported that Napa State Hospital could not legally admit defendant under Penal Code section 1370 because defendant had already spent the maximum three-year period of commitment permitted under that provision, but that the hospital "would be more than happy to accept him per some other hold." Dr. Korpi suggested that a conservatorship be initiated as an alternate means to commit defendant to a state hospital.
Penal Code section 1370, subdivision (c), provides in part that "(1) At the end of three years from the date of commitment or a period of commitment equal to the maximum term of imprisonment provided by law for the most serious offense charged..., whichever is shorter, a defendant who has not recovered mental competence shall be returned to the committing court. The court shall notify the community program director or a designee of the return and of any resulting court orders. [¶] (2) Whenever any defendant is returned to the court pursuant to... paragraph (1) of this subdivision and it appears to the court that the defendant is gravely disabled, as defined in subparagraph (B) of paragraph (1) of subdivision (h) of Section 5008 of the Welfare and Institutions Code, the court shall order the conservatorship investigator of the county of commitment of the defendant to initiate conservatorship proceedings for the defendant...."
Defendant was returned to court in January 1999. The court found defendant to be gravely disabled within the meaning of Penal Code section 1370, subdivision (c)(1), and ordered that he be the subject of conservatorship proceedings initiated pursuant to Welfare and Institutions Code section 5350.
In an investigative report for the conservatorship, the public health department noted defendant "has been back and forth from jail to San Francisco General Hospital" since 1996, and was diagnosed with chronic paranoid schizophrenia. The report said defendant "has been uncooperative with treatment, very dangerous towards others, dangerous to self, and appearing psychotic. " The conservatorship investigator recommended long-term psychiatric hospitalization for defendant "as an ultimate goal of safety as he remains extremely dangerous and potentially lethal in any less restrictive setting. " The report strongly recommended that the charges against defendant not be vacated.
On March 29, 1999, the court appointed the office of conservatorship services as defendants conservator, with the power under Welfare & Institutions Code sections 5358 and 5008, subdivision (h)(1)(B) to hospitalize defendant for psychiatric treatment. The court found defendant incapable of giving or withholding informed consent to refuse treatment, including psychotropic medication, and granted the conservator the authority to give or withhold such informed consent. Defendant was returned to Napa State Hospital. The initial plan upon defendants admission to the state hospital was to stabilize his condition with medication and evaluate his dementia. The long-term goal for his treatment was that he become mentally stable on psychiatric medication and regain his competence to stand trial. It was anticipated he would remain at Napa for one to two years.
Accordingly, in March 2000 the conservator asked the court to renew the conservatorship for a second year. Defendant remained gravely disabled due to his schizophrenia. The conservator reported that defendant "continues to be very delusional, confused, and very sexually inappropriate with both males and females. Staff reports predatory behavior. He can be redirected by staff and becomes cooperative. He denies any illness or problem. He has no insight into his illness and has poor judgment as to his behavior. He does not participate in treatment groups and has difficulty processing information. He is very suspicious and paranoid about food, thinking it is poisoned. Staff has to encourage him to eat. His activities of daily living and grooming are poor." The court renewed the conservatorship.
After that, the conservator submitted annual update reports detailing defendants condition and treatment, and the court annually renewed the conservatorship through 2006. In March 2001 the conservator reported that defendant was "isolative. He has loose associations and is tangential. He has auditory hallucinations and responds to his evil voices. He believes that his medications are poison. He is delusional. He is suspicious and guarded. He gets intimidating and verbally abusive. His thought pattern seems fragmented and bizarre. He is very psychotic. He needs constant verbal prompts and redirections from staff to prevent assault. When he becomes resistive to redirection, he is given a PRN and/or placed in restraints and/or seclusion to prevent serious assaults." Defendants condition, as shown in annual reports to the court, showed little meaningful improvement over the next several years, and he was repeatedly found to be unable to understand the nature of the proceedings against him and to assist counsel in his defense.
PRN is an abbreviation that refers to administering medications to a patient as the occasion requires.
In May 2004 defendant struck another patient at Napa State Hospital and was charged in Napa County with felony assault and battery. He was initially found incompetent to stand trial on these charges, and in November 2004 he was again committed to Napa State Hospital under Penal Code section 1370. Fifteen months later, defendant was again certified as competent to stand trial, and in July 2006 he was convicted of lesser included misdemeanors and sentenced to six months time served.
On May 8, 2006, while the Napa charges were pending, hospital personnel reported to the conservator that defendant had regained his mental competence. In August 2006 the San Francisco Superior Court found defendant competent, and the murder prosecution was reinstated.
Defendant moved to dismiss the information on the ground that his constitutional rights to a speedy trial had been violated. The prosecution opposed dismissal on the grounds that defendant had never previously asserted his speedy trial right; that, in light of defendants mental state, it was neither probable nor possible that the defense would have wanted to proceed to trial sooner; and that, given defendants incompetence, any prejudice that may have resulted from the delay was not attributable to the state.
In December 2006, apparently before defendants motion was heard, there was a question whether defendant remained competent to stand trial and Dr. John Chamberlain was appointed to evaluate him. When Dr. Chamberlain opined that defendant was not competent to stand trial, the court appointed Dr. Jeffrey Gould to assess him and consider whether antipsychotic medication was likely to restore him to competence. Dr. Gould concluded defendants schizophrenia rendered him unfit to stand trial. He explained that defendants psychotic symptoms "would make it impossible for him to rationally cooperate with his counsel in preparing and presenting a defense. He was mute and not responding verbally to me in this interview, to psychiatric staff at jail, and reportedly to his attorney. It is believed at this time that this recent behavior is due to Schizophrenia. It is unknown whether or not he adequately understands the nature and purpose of the proceedings taken against him." But Dr. Gould believed antipsychotic medication could eventually restore defendants competence. He cautioned that doing so would require trials of different medications and combinations of medications and that defendant, who had refused medication in the past, would have to comply with treatment.
The court found defendant incompetent and on March 5, 2006, ordered that he again be placed at Napa State Hospital under a Murphy conservatorship and involuntarily medicated.
Criminal proceedings were reinstated in February 2008, after defendants treatment team once again reported to the court that defendant had regained competency. Defendant was tried by a jury in April and May 2008, and found guilty of second degree murder. After the verdict, the court denied defendants motion to dismiss for violation of his speedy trial rights. Defendant was sentenced to 15 years to life in prison and received 6, 894 days of presentence credit, including credit for 3, 574 days spent in state hospitals. He filed a timely appeal and a petition for writ of habeas corpus addressed to the speedy trial issue raised in his appeal. We ordered the writ petition consolidated with the appeal.
It appears that this ruling was on the motion originally filed in 2006.
DISCUSSION
I. The Constitutional Right to a Speedy Trial
In defendants appeal and his writ petition, he contends the state violated his constitutional rights to a speedy trial due to the seven-year length of his Murphy conservatorship. The People responded that the delay between the filing of the complaint and trial was due to defendants incompetence to stand trial, and therefore justified. It was not the states fault defendant failed to assert his right to speedy trial, and he was not prejudiced by the delay. We conclude the delay was justified by defendants incapacity and that his constitutional rights to a speedy trial were not violated.
Appropriately, defendant does not raise a claim under Penal Code section 1382, subdivision (a)(2), which is " supplementary to and a construction of the state constitutional speedy trial guarantee." (Craft v. Superior Court (2006) 140 Cal.App.4th 1533, 1539.) Under section 1382, an accused felon is entitled to dismissal if not brought to trial within 60 days of arraignment on an information or indictment, absent a showing of good cause or other circumstances such as consent. Because the criminal prosecution against defendant was suspended, however, defendant "finds himself outside the terms of statutory provisions assuring a speedy prosecution." (Craft, supra, at p. 1539.)
Both the state and federal Constitutions guarantee criminal defendants the right to a speedy trial. (U.S. Const., 6th Amend.; Cal. Const., art. I, § 15; People v. Martinez (2000) 22 Cal.4th 750, 754.) Under the federal Constitution, the right is triggered by an arrest with detention or the filing of an indictment, information or misdemeanor complaint. (Martinez, supra, at p. 765.) Delay that is " uncommonly long triggers a presumption of prejudice, with the presumption intensifying as the length of the delay increases." (Id. at pp. 766.) But " presumptive prejudice " in this context "does not necessarily indicate a statistical probability of prejudice; it simply marks the point at which courts deem the delay unreasonable enough to trigger" a balancing test to ascertain whether the defendants speedy trial rights have been violated. (Doggett v. United States (1992) 505 U.S. 647, 652, fn. 1.) Under this test, courts weigh the length of delay, the reason for the delay, the defendants assertion of his right, and prejudice to the defendant. (Barker v. Wingo (1972) 407 U.S. 514, 530.) "We regard none of the four factors identified above as either a necessary or sufficient condition to the finding of a deprivation of the right of speedy trial. Rather, they are related factors and must be considered together with such other circumstances as may be relevant. In sum, these factors have no talismanic qualities; courts must still engage in a difficult and sensitive balancing process. But, because we are dealing with a fundamental right of the accused, this process must be carried out with full recognition that the accuseds interest in a speedy trial is specifically affirmed in the Constitution." (Id. at p. 533.)
The right to speedy trial operates somewhat differently under the California Constitution. (People v. Martinez, supra, 22 Cal.4th at p. 765.) "Under the state constitution, by comparison, the showing that the defendant must make depends upon whether the allegedly unreasonable delay occurred before or after the defendants statutory speedy trial rights attached. The statutory speedy trial provisions, Penal Code sections 1381 to 1389.8, are supplementary to and a construction of the state constitutional speedy trial guarantee.... No affirmative showing of prejudice is necessary to obtain a dismissal for violation of the state constitutional speedy trial right as construed and implemented by statute. [Citation.] Instead, an unexcused delay beyond the time fixed in section 1382 of the Penal Code without defendants consent entitles the defendant to a dismissal. " (Id. at p. 766.) In contrast, "when the claimed speedy trial violation is not also a violation of any statutory speedy trial provision, this court has generally required the defendant to affirmatively demonstrate that the delay has prejudiced the ability to defend against the charge." (Ibid.)
In Sykes v. Superior Court (1973) 9 Cal.3d 83, 91, our Supreme Court observed that "we may give and in fact have previously given meaning to our constitutional provision which derives from an ad hoc balancing test similar although not identical to that now employed in Barker [v. Wingo, supra, 407 U.S. 514]. Such would be the case where the constitutional right to a speedy trial is asserted in circumstances where there are no implementing statutory provisions which might be looked to for guidance in construction or which might compel the same treatment on equal protection grounds." (Sykes, at p. 93.) Because defendant "finds himself outside the terms of statutory provisions assuring a speedy prosecution," this is a case that requires such balancing. (Craft v. Superior Court, supra, 140 Cal.App.4th at pp. 1539-1540.) No presumption of prejudice arises in this situation and the fundamental question posed by defendants state claim is "whether delay at the states hands unreasonably prejudices" his interests in a speedy trial. (Id. at p. 1540.) "The test is necessarily a balancing one: prejudice to the defendant resulting from the delay must be weighed against justification for the delay. " (Ibid)
We review the trial courts ruling for substantial evidence. (People v. Dunn-Gonzalez (1996) 47 Cal.App.4th 899, 912; People v. Hill (1984) 37 Cal.3d 491, 499.)
A. Length of and Justification for the Delay
Defendant concedes the government was attempting to render him competent to stand trial and monitoring his progress from 1992 through 1999, and does not challenge delay during that period. Instead, he argues that once the Murphy conservatorship was imposed in 1999, his status was no longer regularly reviewed by the criminal court and his treatment was directed toward returning him to society rather than restoring his competence to stand trial. Defendant contends that his restoration to competency in 2006, after he received competency-specific training in connection with his assault charge in Napa County, "demonstrates that with proper treatment aimed at rendering petitioner competent to stand trial, he was able to become competent to stand trial. The previous years while he was residing at Napa State Hospital under the Murphy conservatorship, the state failed to properly treat him because competency to stand trial was not one of its treatment goals." The record does not support his claim.
1. Penal Code Sections 1367 et seq.
In order to properly assess the justification for delay in bringing defendants case to trial, our analysis starts with an overview of the legal basis for defendants commitments to state hospital. A defendant cannot be tried if he or she is mentally incompetent, i.e., unable to understand the nature of the criminal proceedings or to assist counsel in the conduct of a defense. (Pen. Code, § 1367.) If criminal proceedings are suspended due to the defendants incompetence, he must be treated in a state hospital or other approved treatment facility to "promote the defendants speedy restoration to mental competence," or on outpatient status. (§ 1370, subd. (a)(1)(B)(i).) Within 90 days of commitment, and thereafter at six-month intervals, the court, the prosecutor and defense counsel must be provided with written reports on the defendants progress. (§ 1370, subdivision (b).) If the report indicates there is no substantial likelihood the defendant will regain mental competence in the foreseeable future, conservatorship proceedings must be commenced. (§ 1370, subds. (b)(1), (c)(2).) If, on the other hand, there is a substantial likelihood the defendant will regain competence in the foreseeable future, he must remain committed under section 1370.
However, a defendant can only be held under Penal Code section 1370 for a limited period. If his competency is not restored within three years or a period equal to the maximum term of imprisonment for the most serious charged offense, whichever is shorter, he must be returned to court. (Pen. Code, § 1370, subd. (c)(1); see generally In re Polk (1999) 71 Cal.App.4th 1230, 1235-1237.) If it then appears to the court that he is gravely disabled due to a mental disorder, it must order the countys conservatorship investigator to initiate " Murphy conservatorship" proceedings under the Lanterman-Petris-Short (LPS) Act. (Welf. & Inst. Code, § 5350, subd. (a)(2); see generally Welf. & Inst. Code, §§ 5000 et seq.)
So named after the authoring legislator. (In re Polk, supra, 71 Cal.App.4th 1230, 1237.)
2. Murphy Conservatorships
In People v. Karriker (2007) 149 Cal.App.4th 763, we explained the statutory basis for the Murphy conservatorship established by a 1974 amendment of the LPS Act. "Chapter 3 of the LPS Act, beginning with [Welfare and Institutions Code] section 5350, authorizes the creation of a renewable one-year conservatorship (§ 5361) for persons who are gravely disabled as a result of a mental disorder.... Under section 5008, subdivision (h)(1)(B), gravely disabled is defined as [a] condition in which a person, has been found mentally incompetent under Section 1370 of the Penal Code and all of the following facts exist: [¶] (i) The indictment or information pending against the defendant at the time of commitment charges a felony involving death, great bodily harm, or a serious threat to the physical well-being of another person. [¶] (ii) The indictment or information has not been dismissed. [¶] (iii) As a result of mental disorder, the person is unable to understand the nature and purpose of the proceedings taken against him or her and to assist counsel in the conduct of his or her defense in a rational manner ([Welf. & Inst. Code] § 5008, subd. (h)(1)(B)).... [I]mposition of an LPS conservatorship is authorized only if the individuals impairment is the result of a mental disorder. " (Id. at pp. 774-775, fns. omitted.)
The LPS act also defines "gravely disabled" to mean, alternatively, "[a] condition in which a person, as a result of mental disorder, is unable to provide for his or her basic personal needs for food, clothing or shelter." (Welf. & Inst. Code, § 5008, subd. (h)(1)(A).) Because this alternative definition is not involved in defendants case, we confine our discussion to the conservatorship scheme for those conservatees found to be gravely disabled within the meaning of section 5008, subdivision (h)(1)(B).
In addition to these statutory elements, constitutional principles require that the trial court imposing the Murphy conservatorship must also find the defendant represents a substantial danger of physical harm to others because of a mental disease, defect, or disorder. (People v. Karriker, supra, 149 Cal.App.4th at p. 776.) As explained in Karriker, "the equal protection clause of the Fourteenth Amendment to the United States Constitution prohibits the state from subjecting a person, solely because of pending criminal charges, to commitment standards more lenient or release standards more stringent than those applicable to persons not charged with criminal offense. [Citation.] The Hofferber[] court held that the states compelling interests in public safety and in humane treatment of the mentally disturbed justified the separate treatment of permanently incompetent criminal defendants formally charged with violent felonies.
Conservatorship of Hofferber (1980) 28 Cal.3d 161.
[Citation.] The court concluded that under a separate statutory scheme the state may confine incompetent criminal defendants, on grounds that they remain violently dangerous, when a magistrate or grand jury has found probable cause to believe that they have committed violent felonies. " (Id. at pp. 776-777.)
Once a Murphy conservatorship is established and a conservator appointed, the defendant (or conservatee) is under the conservators care, custody and control and held "in a placement that achieves the purposes of treatment of the conservatee and protection of the public." (People v. Karriker, supra, 149 Cal.App.4th at p. 778; Welf. & Inst. Code, § 5358, subd. (a)(1)(B).) The conservatorship automatically terminates after one year unless the conservator successfully petitions the court for a successive one-year appointment at or before the end of the first year, and annually thereafter for successive one-year periods. At the time the conservatorship is established and in connection with any successive petition, the conservatee can demand a trial on whether he is gravely disabled, and the jury must find beyond a reasonable doubt that he is currently dangerous as a result of his mental disorder. (Welf. & Inst. Code, § 5350, subd. (d); People v. Karriker, supra, at p. 779; Conservatorship of Roulet (1979) 23 Cal.3d 219, 235.) If the defendant becomes mentally competent during the conservatorship, the conservator must certify that fact to the sheriff, court and counsel and the defendant is returned to court for further proceedings. (Pen. Code, § 1372, subds. (b), (c).)
3. Analysis
In the context of this legal framework, we will consider the length of and reasons for the pretrial delay—critical factors in both state and federal balancing tests. As noted earlier, defendant does not challenge the period from 1992 through 1999, because "the Penal Code system was attempting to render [him] competent to stand trial and was monitoring his progress." His argument, rather, is that once he was in a Murphy conservatorship, "the treatment of the conservatee no longer mandates attempts to render him competent to stand trial. He no longer has any regular reviews in the criminal court and is left to languish in a state mental institution indefinitely." He contends once he was a conservatee the state made no attempt to restore his competence until he was charged with assault in 2004 in Napa County, recommitted under Penal Code section 1370, and ultimately found competent to stand trial on that charge. These events, defendant maintains, demonstrate that "with proper treatment aimed at rendering [him] competent to stand trial," he would have become competent to stand trial sooner.
Defendants argument is factually and legally flawed. As a legal matter, the conservator must place a Murphy conservatee in a placement "that achieves the purposes of treatment of the conservatee," as well as the protection of the public. (Welf. & Inst. Code, § 5358, subd. (a)(1)(B), italics added; see also § 5358, subd. (c)(2) [first priority for a conservatee who is gravely disabled as defined by section 5008, subdivision (h)(1)(b) is placement in a facility that achieves the purposes of treatment of the conservatee and protection of the public].) The conservator thus had a duty to ensure that defendant was being treated for his mental disorder, which was the cause of his incompetence to stand trial. Moreover, the record shows that the conservator complied with that duty. Far from being "left to languish in a state mental institution," defendant was hospitalized and treated for his mental disorder. One long-term goal of the conservatorship was restoration of defendants mental stability so he could regain his competence to stand trial. His condition and treatment were monitored and documented in annual reports, supported by statements from his treating clinicians, to the superior court, the prosecution, and defense counsel. (Pen. Code, § 1370, subd. (c)(4).) The conservatorship was renewed each year on the basis of those reports. None of this is consistent with defendants claim that he was merely "warehoused" and left untreated to "languish" in a mental facility.
The cases defendant cites for his claim that the delay in bringing him to trial was unjustified are inapposite. In People v. Simpson (1973) 30 Cal.App.3d 177, the defendant was restored to competency but, due to an apparent error in communication between the
Department of Corrections and the committing court, he remained confined at the state hospital for an extra nine months before he was returned to court. The defendant in Craft was found incompetent to stand trial and committed to the state hospital for treatment, but the court never issued the commitment order and defendant instead remained in jail for almost 17 months without treatment before the mistake was discovered. (Craft v. Superior Court, supra, 140 Cal.App.4th at pp. 1537-1538.) Here, in contrast, there was no similar accidental delay and no deprivation of treatment during defendants hospitalization.
As a factual matter, defendants long history of instability undermines his claim that his competency certification in 2006 after the Napa assault proves he would have earlier become competent to stand trial on the murder charge if given treatment specifically directed at his regaining competency. Defendant was initially found incompetent in the Napa proceedings in 2004 due to his paranoia and depression. A year later, his psychiatric evaluation noted that his "course has been one of marginal, if any, progress"; he was "not typically motivated to participate in therapeutic activities that are assigned to him in order to gain trial competency"; and his medication was not having an appreciable therapeutic effect. His next evaluation in July 2006, however, was markedly better. The evaluator found no evidence of hallucinations or true delusions and noted that defendants depression had improved, that he understood the importance of taking medication, and that he was more responsive and rational in understanding the charges against him. In May 2006 defendant was referred back as competent to the Napa Superior Court.
But this improvement, too, was short-lived. Although shortly after the competency finding in Napa the San Francisco Superior Court also found defendant competent to stand trial, within six months he was again incompetent and returned to Napa State Hospital with an involuntary medication protocol. Upon readmission to the hospital, defendant was found to have lost 20 pounds since his discharge the previous
August and reported a loss of appetite, lack of sleep, depression and suicidal thoughts. However, he responded well to a new medication regimen and was assigned to various treatment groups including trial competency training. As a result, defendant was recertified as competent on January 29, 2008.
As the People observe, this pattern was consistent with defendants long history of cycling between competence and incompetence. Defendant claims that a combination of forced medication and trial competency-specific training would have earlier rendered him competent to stand trial on the murder charge, as occurred in Napa, and that "[i]t is the lack of that combination, which included competency training, which [defendant] asserts as the basis for his denial of speedy trial [claim]." (Italics added.) But defendants assertion is highly speculative. Even when defendant was provided with such treatment, his improvement was at best ephemeral and his condition rapidly decompensated to a level where he was incapable of assisting in his defense. There is substantial evidence that defendant was receiving appropriate treatment for the mental illness at the root of his incompetency. Although the delay before trial was long, the record does not support defendants claims that it was unjustified by his incompetency to stand trial, that he could have been returned to competency sooner under a different treatment plan, or that the treatment he was given was not reasonably aimed at restoring his mental capacity. To the contrary, the record demonstrates an extremely strong state justification for the lengthy pretrial delay.
During a discussion between court and counsel shortly before the case went to the jury, defense counsel described it as "miraculous, to put it mildly, that we have gotten so far with [defendant], given his history." While defense counsel and the court confirmed their view that defendant was not then incompetent, defendant counsel commented that "I think if somebody told Napa that we were going to get this far, they would have said that we were the crazy ones." Defendants present claim that adding trial competency training to a medication regimen would have rendered him competent years sooner stands in odd juxtaposition to this explicit acknowledgement by his own trial attorney that his return to competence for and throughout the murder trial was, at a minimum, a tenuous and surprising development.
B. Prejudice
Under both state and federal Constitutions, any prejudice to the defendant resulting from the delay must be weighed against its justification. (People v. Dunn-Gonzalez, supra, 47 Cal.App.4th at pp. 910-911.) Here, defendants showing of prejudice is minimal when compared to the justification for the delay.
"Prejudice... should be assessed in the light of the interests of defendants which the speedy trial right was designed to protect. This Court has identified three such interests: (i) to prevent oppressive pretrial incarceration; (ii) to minimize anxiety and concern of the accused; and (iii) to limit the possibility that the defense will be impaired. Of these, the most serious is the last, because the inability of a defendant adequately to prepare his case skews the fairness of the entire system." (Barker v. Wingo, supra, 407 U.S. at p. 532, fn. omitted.) As defendant was held under a Murphy conservatorship and treated for a serious mental disorder that rendered him incompetent, and because he could not be tried while he was incompetent, we agree with the People that the defendants interests in remaining free from oppressive incarceration and minimizing his anxiety and concern are not implicated here. Indeed, defendant does not argue that they are.
Defendants primary claim of prejudice, rather, rests on his inability to prepare his defense. He contends his ability to defend himself was diminished by the delay because the credibility of his only defense witness was undermined by her drug use and lack of recollection. We disagree.
In the circumstances of this case, whether defendant adequately asserted his speedy trial rights while under the Murphy conservatorship is of relatively little weight in the equation and, appropriately, neither party gives it particular attention in their briefing.
1. Facts
Defendants claim of prejudice requires us to review the trial testimony. The evening of May 18, 1992, Francis Gabik heard a loud banging through the wall of his hotel room and thought his neighbors were slamming the door on their garbage chute.
Around 45 minutes later defendant called 911 from a phone across the street from the hotel. He told the dispatcher his wife was unconscious and bleeding from her nose. He said, "Its my wife—she came home, I dont know what it—She started bleeding out her—We were having sex. Or drugs. Just please get here, please."
When police officers and an ambulance team arrived, defendant repeated that his wife started bleeding from the nose and became unconscious while they were having sexual intercourse. Defendant tried to perform CPR, then ran downstairs and called 911. When paramedic John Marberry and his partner arrived, Sagers was dead. Her naked body was lying face up on the bed and there were bruises on her face and thighs. The bed appeared to have been neatly made.
August Weber, an investigator with the San Francisco Medical Examiners Office, arrived at the scene after the paramedics. Sagerss body had been moved to the floor and the bed covers were strewn around. Defendant was crying hysterically. He said his wife had returned home around 2:00 that afternoon after being gone for two or three days. Defendant said Sagers was a drug addict and it was not unusual for her to be gone for several days at a time. He also said Sagers had been beaten by a Black man.
Weber observed scratch marks on Sagerss body, some blood smears and droplets on her arms and legs, blood around her mouth, and multiple areas of bruising. There were droplets of blood on defendants pant leg. His hands were dirty, rough and swollen, consistent with the hands of a street person, but there was no blood on them.
Forensic pathologist Dr. Michael Ferenc testified the cause of death was multiple traumatic injuries. There were multiple bruises on Sagerss body, including her face, limbs and torso, scrapes, and a large laceration on the upper lip. The most severe injuries were a laceration to the mesentery of the bowel and a significant head injury, both with associated hemorrhaging. The mesentery tear would have required a great deal of force, like a very strong kick, and a person suffering from such an injury would experience extreme abdominal pain. Although morphine was present in Sagerss system, it would have dulled but not removed the pain. Dr. Ferenc opined that due to her injuries, it was unlikely Sagers would be able to engage in sexual intercourse because of severe pain; it would have been like having sex with the equivalent of appendicitis or a ruptured fallopian tube. He saw no evidence of recent sexual activity before her death.
Dr. Ferenc also observed older scar tissue that indicated previous injuries to Sagerss abdominal area and an earlier subdural hematoma. It was possible that the subdural hemorrhage was a reopening of the older wound, and it could have been caused by a sneeze, but was more likely caused by an impact to Sagerss head. The fresh abdominal injury could have been inflicted up to 24 hours before Sagerss death. Just before death Sagerss abdominal symptoms would have become acute. She would have gone into irreversible shock, been unable to stand, and had decreased mental acuity.
The principal defense witness was Trudi Cordova, who lived in the same hotel as defendant and Sagers in 1992. Cordova testified that one day a car sped by her on Sixth Street, then slowed down and stopped. A passenger door opened and a woman fell to the ground. Cordova recognized her as Sagers from "trying to cop drugs." Sagers looked "pretty messed up," like she had been beaten. She declined Cordovas offer to call an ambulance but asked her to take her home to the hotel. It was difficult for Sagers to walk, so Cordova helped her. They walked upstairs and Cordova knocked on the door of Sagerss room. Defendant answered. Cordova thought he was Sagerss husband. He asked Cordova what had happened, and Cordova responded that she did not know. Defendant thanked her and Cordova left. Later in 1992, Cordova encountered defendant in the county jail while she was being held for stealing a car and learned for the first time that defendants wife had died. Shortly thereafter, she met with defendants lawyer for the first time.
Cordova was identified as a male in 1992, and went by the name John Cordova.
On cross-examination, Cordova admitted she had been convicted of murder in 1977, robbery in 1983, possession of a controlled substance for sale in 1996, and grand theft in 2001.
After Cordova testified, the court commented upon a change in her demeanor over the course of her testimony and that she became very testy at the end. The court also observed that Cordova made a comment to defense counsel that was heard by some of the alternate jurors, and opined that her belligerence may have been caused by embarrassment at being questioned about a statement she was unable to read. Cordova was on methadone and fell asleep three or four times while testifying at an evidentiary hearing outside of the jurys presence several days before her appearance at trial.
The court "wasnt quite sure" what he had heard and the comment is not on the record, although defendant claims Cordova called defense counsel "an asshole."
2. Analysis
Defendant asserts he was prejudiced by delay because Cordovas testimony supported his defense that someone else beat Sagers, but by the time of trial she was so impaired by methadone intoxication that she could barely testify and was "substantially impeached for lack of memory." Balanced against the states justification for the delay in bringing the case to trial, we find the potential for prejudice attributable to the delay relatively minor. Even in 1999, Cordovas credibility was subject to impeachment. She had prior convictions for murder, robbery, and drug possession. She first spoke with defense counsel six months after Sagerss death after she spoke with defendant in county jail. Her professed acquaintance with Sagers was from "trying to cop drugs."
Although defendant stresses that Cordova "fell asleep while she was on the witness stand at least four times," the jury was not present at that hearing and Cordovas performance at trial two weeks later was not so obviously impaired. Nor is there any indication that Cordovas hostile demeanor resulted from delay in the trial, rather than, as the trial court surmised, her embarrassment or frustration. In short, there is little to indicate that Cordova would have been significantly more credible or in better physical or mental condition to testify had the trial been held closer to 1999.
It is true that the prosecutor impeached Cordova with telling inconsistencies between the statement she gave in 1992 and her trial testimony. For example, Cordova denied saying in 1992 that she escorted Sagers only as far as the metal gate at the entrance of the hotel. She could not recall if she told defense counsel in 1992 about the speeding car, or if she merely said she saw Sagers walking down the street. The prosecutor also elicited an acknowledgement from Cordova that when she spoke with a defense investigator in 2006 she did not recall her 1992 encounter with Sagers until he reminded her about it. But, particularly given her history of drug use, the record gives no indication Cordovas testimony would have been more consistent with her 1992 statement had the trial occurred in 1999. Moreover, the jury was fully aware of the passage of time and was able to assess whether the discrepancies between her testimony and her prior statements were due to faulty memory or fabrication.
Defendant also claims he was prejudiced because he lost a significant amount of good time credit for the time he spent hospitalized under the Murphy conservatorship. Not so. The Murphy conservatorship was justified and mandated by reason of defendants grave mental disability (People v. Karriker, supra, 149 Cal.App.4th at pp. 774-777; Welf. & Inst. Code, § 5008, subd. (h)(1)(B)), and defendant could not constitutionally have been brought to trial until he was returned to competency. Moreover, defendant is serving an indeterminate life term. Any effect of the denial of sentence redaction credits in the circumstances is speculative at best. (See Cal. Code Regs., tit. 15, §§ 2342 & 2343.) Accordingly, no unreasonable prejudice arises as a result of any denial of sentence reduction credits.
In sum, while a long while passed before trial, the evidence against defendant was extremely strong; his story that Sagers was beaten by an unidentified Black man and later started bleeding while they were having sex was unsubstantiated and undermined by the medical evidence. His defense witness had significant credibility problems independent of the passage of time. Weighed against the states compelling justification for the long delay while defendant was incompetent to stand trial, the potential prejudice falls far short of that which would implicate defendants constitutional speedy trial rights under either the state or federal Constitution.
II. The Court Properly Instructed the Jury on Reasonable Doubt
The trial court twice instructed the jury on reasonable doubt pursuant to CALCRIM No. 220, immediately before the attorneys opening statements and again before closing arguments. CALCRIM No. 220 defines reasonable doubt and states that "[a] defendant in a criminal case is presumed to be innocent. This presumption requires that the People prove a defendant guilty beyond a reasonable doubt. Whenever I tell you the People must prove something, I mean they must prove it beyond a reasonable doubt unless I specifically tell you otherwise."
Defendant asserts this standard instruction is defective because it fails to explicitly state the jury must find each element beyond a reasonable doubt. In People v. Ramos (2008) 163 Cal.App.4th 1082, Division One of this court rejected the same contention. We agree. As Ramos explains," „ "In determining whether error has been committed in giving or not giving jury instructions, we must consider the instructions as a whole... [and] assume that the jurors are intelligent persons and capable of understanding and correlating all jury instructions which are given." " (Id. at p. 1088.) CALCRIM No. 220 "explicitly informed the jurors that „ Whenever I tell you the People must prove something, I mean they must prove it beyond a reasonable doubt. " (Ramos at p. 1088.)
Here, just as in Ramos, the trial court "went on to enumerate each of the elements of the charged crime... and stated that the People were obligated to prove each of those elements in order for defendant to be found guilty." (See People v. Ramos, supra, 163 Cal.App.4th at pp. 1088-1089.) Thus, the jurors were instructed that "The defendant is charged with murder. To prove that the defendant is guilty of this crime, the People must prove that: [¶] 1. The defendant committed an act that caused the death of another person, and [¶] 2. When the defendant acted, he had a state of mind called malice aforethought." They were also instructed that to prove assault likely to produce great bodily injury, "the People must prove that the defendant: [¶] 1. The defendant did an act that by its nature would directly and probably result in the application of force to a person and the force used was likely to produce great bodily injury, and [¶] 2. The defendant did that act willfully. [¶] 3. When the defendant acted, he was aware of facts that would lead a reasonable person to realize that his act by its nature would directly and probably result in the application of force to someone, and [¶] 4. When the defendant acted, he had the present ability to apply force likely to produce great bodily injury to a person." "If we assume, as we must, that the jurors [were] intelligent persons and capable of understanding and correlating all jury instructions... given..." [citation] [citation], then we can only conclude that the instructions, taken as a whole, adequately informed the jury that the prosecution was required to prove each element of the charged crime beyond a reasonable doubt." (Id. at p. 1089, fn. omitted.) There is no reasonable likelihood here that the jury understood the instructions to allow for conviction based on less than proof of each element beyond a reasonable doubt.
We are unpersuaded by defendants reliance on People v. Vann (1974) 12 Cal.3d 220; People v. Mayo (2006) 140 Cal.App.4th 535 and People v. Flores (2007) 147 Cal.App.4th 199. The Ramos court correctly found Vann and Flores inapposite because they " reversed criminal convictions based on the trial courts failure to instruct the jury at the conclusion of the trial regarding the presumption of innocence, and its omission from the posttrial jury instructions of any instruction defining reasonable doubt. [Citation.] Neither of these defects is present in this case." (People v. Ramos, supra, 163 Cal.App.4th at p. 1089.) Nor is either defect present here.
Mayo is, if anything, less supportive of defendants position. There, the Court of Appeal concluded that other instructions adequately instructed the jury on the reasonable doubt standard despite the courts inadvertent failure to give a specific instruction on the definition of reasonable doubt. (People v. Mayo, supra, 140 Cal.App.4th at pp. 539, 541545.) As noted in Ramos, while the use of language informing the jurors that the prosecution must prove each element of the charges beyond a reasonable doubt may be appropriate, apparently no case has held that it is mandatory. To the contrary, our Supreme Court has said: "It would be correct to instruct that the People must prove every element of the offense beyond a reasonable doubt, but a defendant is not entitled to that instruction." (People v. Ochoa (2001) 26 Cal.4th 398, 444, fn. 13, disapproved on another point in People v. Prieto (2003) 30 Cal.4th 226, 263, fn. 14; accord, People v. Osband (1996) 13 Cal.4th 622, 678; People v. Reed (1952) 38 Cal.2d 423, 430; see also People v. Orchard (1971) 17 Cal.App.3d 568, 576-577 [where trial court instructed on the presumption of innocence and reasonable doubt, compared the standards of proof in civil and criminal cases, and defined all essential terms of the crime charged, "an instruction respecting proof of each element beyond a reasonable doubt need not have been given"].)
The court correctly instructed the jury. We conclude there was no error.
We deny defendants January 13, 2010, request for judicial notice of the records in his Napa County Superior Court case because defendant has not demonstrated that those records are necessary to our resolution of the issues presented here. Respondents motion to file a portion of the respondents brief under seal is denied. (See Cal. Rules of Court, rules 8.46(e)(2), 2.550, 2.551.)
DISPOSITION
The petition for writ of habeas corpus is denied. The judgment is affirmed.
Siggins, J.
We concur:
McGuiness, P.J.
Pollak, J.